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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 17-12671, 17-13409
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20195-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JHIRMACK WILES,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(April 30, 2018)
Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Jhirmack Wiles appeals his convictions after
pleading guilty to two counts of brandishing a firearm in furtherance of a crime of
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violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The sole substantive issue
he raises on appeal is whether Hobbs Act robbery, 18 U.S.C. § 1951(a), is a “crime
of violence” for purposes of § 924(c).1 Wiles maintains that it is not because it
does not meet the definition of a crime of violence under the use-of-force clause in
§ 924(c)(3)(A), and because the risk-of-force or residual clause in § 924(c)(3)(B) is
unconstitutionally vague, in light of Johnson v. United States, 135 S. Ct. 2551
(2015). We affirm.
Section 924(c)(1)(A) provides for a separate consecutive sentence if any
person uses or carries a firearm during and in relation to a crime of violence, or
possesses a firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A). For
purposes of § 924(c), a “crime of violence” is defined as an offense that is a felony
and
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
Id. § 924(c)(3). Section 924(c)(3)(A) is commonly referred to as the use-of-force
clause, while § 924(c)(3)(B) is commonly referred to as the risk-of-force or
residual clause. United States v. St. Hubert, 883 F.3d 1319, 1327 (11th Cir. 2018).
1
Wiles also argues that the sentence-appeal waiver in his plea agreement does not bar his
appeal, but the government does not seek to enforce the waiver or otherwise contest our authority
to decide the issue raised.
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After Wiles filed his brief with this Court, we held in St. Hubert that Hobbs
Act robbery constitutes a crime of violence under § 924(c)(3)(A)’s use-of-force
clause. St. Hubert, 883 F.3d at 1328–29. Further, we rejected the argument that
the Supreme Court’s decision in Johnson invalidated the similarly worded clause
in § 924(c)(3)(B). Id. at 1327–28. We stated that, in Ovalles v. United States, 861
F.3d 1247 (11th Cir. 2017), we had already ruled that Johnson did not invalidate
§ 924(c)(3)(B), and we found we were bound to follow Ovalles. Id. at 1328. We
further concluded that, regardless of the Supreme Court’s ruling in Sessions v.
Dimaya, No. 15-1498 (U.S., argued Oct. 2, 2017), involving the residual clause in
18 U.S.C. § 16(B), that ruling would not undermine Ovalles because Dimaya
concerned a different substantive section than § 924(c)(3)(B), as well as different
analytical frameworks. See id. at 1336–37.
Here, Wiles’s arguments are foreclosed by binding precedent. See United
States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (stating that we are bound
by our prior decisions unless and until they are overruled by the Supreme Court or
this Court en banc). We are bound by St. Hubert’s holding that Hobbs Act robbery
qualifies as a crime of violence under the use-of-force clause in § 924(c)(3)(A).
And Wiles’s contention that the risk-of-force clause in § 924(c)(3)(B) is
unconstitutionally vague is foreclosed by Ovalles, notwithstanding Dimaya.
Accordingly, we affirm Wiles’s convictions.
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AFFIRMED.
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